Were The Students Journalists Or Advocates?

An intense controversy has erupted over the efforts of Northwestern University journalism students to discover the truth about a 1978 murder case. The government is attempting to wrest sensitive information from the former students. At the heart of that contentious legal move is a deceptively simple question: were the 30 students who spent three years studying whether a man was wrongfully convicted of the murder acting as journalists or investigators?

If the students were acting as working journalists, as Northwestern University and their professor, David Protess, who directs the Medill Innocence Project, assert, they would be covered by Illinois's media shield law, which would bar the state from forcing them to reveal confidential sources or produce working notes and documents relating to their inquiries. But if they were "criminal investigators", as Cook County prosecutors maintain, they would not be covered by the state's shield law, and Protess and the college could be held in contempt of court if they do not acquiesce to the government's sweeping subpoenas for any and all unpublished student videos of their interviews with witnesses, interviews, notes and emails relating to their investigation, their former students' grades, grading criteria, performance reports, class syllabus, and expense reports.

Vowing to resist the subpoena, Northwestern and Prof. Protess, backed by many media groups, have decried what they see as the government's unwarranted "fishing expedition" into their students' sources and efforts to secure information about them that might violate their privacy under Federal law.

Speaking for the prosecutors, Sally Daly, their spokeswoman, has said the government is simply seeking access as part of its own official inquiry to all of the information the students collected and considered between 2003 and 2005. But the prosecutors have clearly implied that the students may have suppressed information at odds with their view that Anthony McKinney was wrongfully convicted in the fatal shooting of a Chicago security guard 31 years ago. The prosecutors have also insinuated that the students may have dismissed or twisted evidence, believing they would be rewarded with better grades and performance reviews if they exonerated their subject rather than concluded that his conviction was lawful. Such assertions, of course, go far beyond the issue of who is a working journalist, and appear to impugn the very integrity of Northwestern's journalism program as well as the students' conduct.

Yet More Accusations

Now, seemingly impervious to the growing outrage over the case among media groups and civil libertarians, Anita Alvarez, the recently elected Cook county state attorney, has raised the stakes even further. In a 54-page document filed on Tuesday, the prosecutors insinuate that the students paid two people whom the government calls "witnesses" to help prove that McKinney was not guilty. Mind you, the government itself has not alleged this. Rather, it quotes a "witness" who was interviewed by the students, but who later recanted his videotaped statement, as saying that he used $40 in change from $60 in cab fare paid by the student reporting team to buy crack cocaine. That "witness" was a man whom the students have identified as an alternative suspect in the murder. (The former student who paid the cab driver said he had paid the taxi driver $60 after having been told that the fare for taking his witness home would cost at least $50.)

The government also cites in its brief contentions by the "witnesses" that the female journalism students "flirted" with them, suggesting that they were seduced into making their self-incriminating videotaped statements.

Conceding that the Medill Innocence Project and similar groups have "oft performed a valuable role in gathering proof or exoneration and actual innocence," the state's attorney's brief adds an insidious innuendo: "However, if one engages in that [advocacy] role, it must always and in each case, adhere to high ethical standards to ensure that the information it obtains is reliable and trustworthy." Rather than directly assert that the student team paid a convicted murderer $40 for his videotaped interview and another witness between $50 and $100 -- paying sources is a widely viewed as unethical in journalism -- the state slyly suggests that the allegations of such "witnesses," coupled with interviews with and records provided by a taxi company, raise what it calls "severe credibility issues" about the students' conduct and the Innocence Project's impartiality.

What raises credibility issues, in fact, is the government's attempt to smear the student reporters and the Innocence Project, its profound ignorance of what journalists do and how we do it, and the dangerous precedent this subpoena risks setting if the judge, who is clearly sympathetic to the state's arguments, approves the government's overreaching demands for the students' personal and professional information.

First, consider some background on the case. On Sept. 15, 1978, Donald Lundahl, a security guard in Harvey, a Chicago suburb, was shot and killed while sitting in his car at night. The police initially apprehended McKinney, then 18, with no weapon or history of violent crime, as he was running down the street near the crime scene. He told police that he was fleeing other gang members, but other eyewitnesses told the police that they had seen McKinney kill the security guard. After a protracted interrogation, McKinney confessed and in 1981, despite having recanted his confession as forced in court, was found guilty and sentenced to life in prison for first-degree murder.

In October, 2003, Prof. Protess' journalism students began examining the case - one of 15,000 appeals for review that the Medill Innocence Project has received -- at the urging of McKinney's brother. By June, 2006, three academic years later, the student teams, aided by a private investigator serving as a teaching assistant who also ensures the students' physical safety, had located the eyewitness who had originally ID'ed McKinney. In a videotaped interview, he reaffirmed his allegation that the police had beaten him into inventing his story about McKinney's involvement. The other eyewitness also recanted his earlier testimony against McKinney. The students then interviewed two admitted gang members who confirmed that they had had, in fact, chased McKinney down the block on the night of the murder. Seven others told students about Anthony Drakes, a convicted killer who they said had told them years ago that he had killed the security guard.

After the students tracked Drake down to Swansea, Illinois, he told them in a videotaped interview that he was "present" when the murder was committed and that McKinney was innocent. Drake fingered two of his friends, Michael Lane and Roger McGruder, as the perpetrators.

In a prison interview with the students in 2005, Francis Drake, Anthony's nephew, said that his uncle Anthony and Michael Lane had admitted having participated in the shooting when they arrived at his house on the night of the murder. He then signed a sworn statement about the conversation he had overheard as an 8-year-old boy.

In November, 2006, the students shared the evidence they had collected with lawyers and law students at the Center on Wrongful Convictions at Northwestern's Bluhm Legal Clinic, which in October, 2008 petitioned the court to vacate McKinney's conviction and order a new trial. They also began hunting for a newspaper or tv station that would publicize their findings in full. In November, Prof. Protess posted the students' findings on the Medill project's web site - under his own by-line -- and that same month, the Chicago Sun-Times wrote a front-page story about the case.

It appeared that the Medill Innocence Project was well on its way to having exonerated its twelfth wrongly convicted inmate, thanks to the student reporters' dogged reporting. Convicts in five of its earlier cases had been on death row when earlier student teams began investigating their pleas for help, a record that had led then Illinois governor George Ryan to praise the project and impose a moratorium on the death penalty in his state.

But the government's response to the students' latest allegations of police and prosecutorial misconduct was not to launch an emergency inquiry aimed at ensuring that McKinney would avoid spending his 32nd year in the psychiatric ward of his medium-security prison. Instead the government issued a sweeping subpoena challenging the journalistic bona fides of both the students and their professor.

What Does It Take To Qualify As A Journalist?

Prof. Protess, the state prosecutors alleged in their legal brief, was not even a journalist, they claimed, since he "has not published recently" and "does not allege his involvement in the publication of a school newspaper." In its response, Northwestern notes that Protess, who founded the Innocence Project in 1999 and has published four books and numerous articles on the criminal justice system, is a professor of journalism at the school. Suggestions that he is not a journalist, and therefore, is not protected by the state's media shield law, should not pass "the straight-face test."

In fact, Prof. Protess told me that he received the government's subpoena on the very day that the Encyclopedia of Journalism notified him that he had been had selected as one of the nation's 30 most notable investigative journalists since World War I.

As for the students, a flurry of media organizations have asserted that by any standard, they were acting as journalists and hence, are covered by the state's shield law. "Just because they're students doesn't mean they're not journalists," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, a Washington-based media group that has been lobbying for a Federal shield law.

Dalglish adds that the state's assertion that investigators are not reporters is widely regarded as absurd. "Journalists have been advocates for the last 250 years," she said. "Our country is justifiably proud of its rich tradition of 'muckraking' - or advocacy journalism."

Moreover, media groups regard the government's claim that the students were not journalists because they did not publish their findings as equally ignorant of how the press operates. First of all, the students' findings were published, albeit belatedly, not only on the Project's own web site, but in the Chicago Sun-Times. But second, not every investigation by journalists winds up in print. Journalists often spend days, weeks, and even months pursuing tips that don't pan out, leads that turn out to be misleading, and premises that prove false. That is the nature of the beast. Third, case law in Illinois suggests that the state's shield law has long covered investigations and research that is intended to benefit the public, whether or not the group that conducts it owns a publication, broadcast station or web site.

Donald M. Craven, the interim executive director of the Illinois Press Association, notes that in The People vs. Degorski, a much celebrated case in Cook County, the courts decided that the shield law covered the Better Government Association, a government watchdog group, and incidentally, Prof. Protess' employer at the start of his career, although it was not a traditional news organization. The court ruled that it was sufficient for the group to publish through "collaborative efforts with local and national news media" and "publish[ed] its own work on hard copy and via its website."

Similarly, the government brief offers no evidence - and the office declined a telephone request for comment - to support its claim that students who found exonerating evidence in cases may have been more highly rewarded than those whose research supported a conviction. Had the state's attorney bothered to interview Diana Samuels, now a reporter at the Daily News in Palo Alto, or Sarah Levy, a communications assistant at Northwestern's Institute for Policy Research, both of whom graduated in 2008, she would have learned that both received an "A" for unearthing new evidence that showed that a previously convicted killer in a murder/robbery case was guilty. In fact, the perpetrator eventually confessed his role to the students and outlined how the crime had come about as a result of their investigation. "The truth was hard for me to swallow," said Ms. Levy. "But as Prof. Protess constantly reminded us, as journalists, we weren't looking for innocence, but for the truth."

Ms. Samuels called the class "invaluable," saying it taught her basic investigative skills such as how to get and analyze police and court records, interview people who resisted talking to her, and track down potential sources and records -- "things I'm now doing all the time," she says.

Moreover, the state prosecutors had ample reason to be aware of how the student teams operated and how valuable their research could be, since the office had worked so closely for years with Prof. Protess. Even in the McKinney case, he noted, the project had provided the prosecutors with videotapes, interview transcripts and other documents relevant to the case.

But the government now says it needs to see all of the students' work product, including its interviews with confidential sources and other sensitive material obtained on condition that it not be shared, to evaluate the "credibility" of the material already provided - a demand that has baffled and enraged journalists and civil libertarians alike and led some to question the prosecutors' motive.

"Turning over such material would destroy the project's autonomy," said Craven. "It makes no sense unless the goal is to dismantle the project."

At very least, the government appears to be trying to turn the investigative tables on Professor Protess and his students. Whereas they were once hunting down allegations of wrongful convictions as part of an "innocence project" movement in Illinois and some 30 other states, they are now the ones being targeted. And that should worry all of us, not just journalists.